Last Thursday, I was going through This Day and, on Page 34, I saw a news story titled “DSS Files Charge Against Utomi Over Planned Shadow Government”. I didn’t know how to react, whether to fall on the floor rolling with laughter because it sounded so ludicrous, or whether to cry, because such a serious security agency which Nigerians look upon to take care of their internal security, could be wasting precious time on such instead of concentrating fully on Bandits, Kidnappers, Insurgents, so-called Herdsmen, and all the other new criminals that have emerged to cause Nigeria‘s internal insecurity. The news story stated that the Department of State Services (DSS) had gone to the Federal High Court, to get a perpetual injunction to stop Professor Pat Utomi and his associates from establishing a Shadow Government! The DSS claims that the Shadow Government is contrary to Sections 1(1), (2) & 14(2)(a) of the 1999 Constitution of the Federal Republic of Nigeria (as amended)(the Constitution). 

One wonders if the DSS or its legal representatives understand what a Shadow Government is, at least, in Prof Utomi’s context, as the term ‘Shadow Government’ could have several appearances, and how needless their action of filing a suit in this regard is. To most Nigerians, it appears like a not-so-subtle attempt to stifle Nigerians’ right to freedom of thought and expression, which is enshrined in Sections 38(1) & 39(1) of the Constitution. See Shuaibu & Ors v Utomwen & Ors (2022) LPELR-58237(CA) per Biobele Abraham Georgewill, JCA on the right to freedom of expression. How does inaugurating a group that shadows government, monitoring whether government delivers good governance and churns out sound economic and public policies, translate to being a group that wants to control government and seize the sovereignty of Nigerians contrary to Sections 1(2) & 14(2)(a) of the Constitution? This is called accountability, checks and balances, encouragement of transparency in governance, and possibly opposition, if the Shadow Group disagrees with government policies; these are essential elements of democracy, and cannot be said to be unconstitutional. Unless there are many more facts that the public is unaware of, beyond Prof Utomi’s television interviews and social media activities which were referred to in the aforementioned news story, it is preposterous to conclude that he’s in breach of the aforementioned Section 1(2) & 14(2)(a) of the Constitution. 

Appearances of Shadow Government 

In the first context, you have a Shadow Government which is a clandestine group, such as a secret cult, populated with members from the different arms of government and all walks of life, and together, the members exercise immense powers over every aspect of government and its policies. This context is not applicable to Prof Utomi’s group, as it’s neither clandestine (some of the names of the members and their designations were published in the aforementioned news story), nor does his group wield any power.

In the second context, a Shadow Government could be an informal group that isn’t publicly accountable, possibly one that comprises of family members, cronies and associates of a political leader/top government official, but is well informed about all the important aspects of governance, even more so than those who may hold office and wields power over government policies, aka ‘Kitchen Cabinet’. We know that this certainly does not and cannot describe Prof Utomi and at least, one of the alleged members of his team, Dele Farotimi, who is a critic of Government. Even as a Politician aspiring to be the APC Delta State Gubernatorial candidate for the 2019 election, sometime in 2018 after the Delta State APC Primaries, a video trended in which Prof Utomi described his fellow APC Members as ‘evil’, because not only was he excluded from the Party Primaries which he was to participate in, the venue of the intra-party event wasn’t even shared with him! Obviously, Prof Utomi, who one can safely conclude has since left APC, is certainly not an inner caucus member of the powers that be, and this context of the definition of Shadow Government is inapplicable to his group, as he is even seen by some as a disgruntled former APC Member who turned sour after failing to achieve his political goal. Prof Utomi wasn’t even given any usual consolation prize appointment, like other party members who don’t get or don’t win their elective positions are usually given.

In the third context, like in the UK, a Shadow Government is simply the strong opposition having its own Shadow Government complete with a Shadow Cabinet who study the policies of the corresponding Cabinet actually in office, criticise them, develop alternative/substitute policies and hold government accountable. For example, the UK Secretary of State for Education is Bridget Phillipson (she had been Shadow Minister with the same portfolio when Labour was the opposition), while the Shadow Minister of Education is now Laura Trott of the Conservative Party. It is in this third context that it makes sense to consider Prof Utomi’s Shadow Group, though they do not appear to have a full Shadow Cabinet, nor can they be said to be a strong opposition, at least, not in the way and manner the Conservative and Labour are to each other. 

In the first context of the clandestine Shadow Government, there should certainly be concern, because no one but the members of their secret group know what their motives and goals are; even the knowledge of the existence such groups or their membership is usually mostly cloudy. In the second and third contexts, the essence of a Shadow Government is obviously not to overthrow the incumbent government. If anything, the second group wants to keep the government in office, so they can continue to wield power, while the third group gains popularity and experience from their shadowing, in preparation for taking up office if their Party wins the next election, as in the case of Bridget Phillipson who took over the substantive Education portfolio she had previously shadowed, when Labour won the election. In short, in the third scenario, such as Prof Utomi’s, unless government is trying to stifle all opposition and in so doing, this may be tantamount to breaching some fundamental rights such as the right to freedom of thought, expression, peaceful assembly, association and freedom from discrimination contrary to Sections 38(1), 39(1), 40 and 42(1)(a) of the Constitution, ordinarily there’s really nothing wrong in having an organised opposition. In Ransome-Kuti & Ors v AGF & Ors (1985) LPELR-2940(SC) per Kayode Eso, JSC, the Supreme Court held inter alia that, fundamental rights stand above the ordinary laws of the land. 

Functions of SSS

The action filed against Prof Utomi, is civil in nature. But, since what the Plaintiff is asking the court for in the case appears to be misconceived, seeing as trying to form a viable opposition is Prof Utomi’s right and cannot by the stretch of a vivid imagination, be said to be him trying to take control of the Government of Nigeria contrary to Section 1(2) of the Constitution, nor can him and his group be said to be trying to wrestle sovereignty from the people of Nigeria whom it belongs to, contrary to Section 14(2)(a) of the Constitution, I decided to examine the action of Prof Utomi through a criminal lens, particularly because the SSS (DSS) exercises criminal jurisdiction. 

The National Security Agencies Act 2006 (NSA Act), the establishment law of Nigeria’s Security Agencies, namely the Defence Intelligence Agency (DIA), National Intelligence Agency (NIA) and State Security Service (SSS) makes no mention of the DSS as one of the three national security agencies (see Section 1 (a)-(c) of the NSA Act), though the claim by the SSS is that DSS is its alter-ego, the same as SSS, or something like that.

The functions of SSS which are not at large, but border on dealing with crimes that affect the internal security of the country, are set out in Section 2(3) of the NSA Act; and we can easily rule out Section 2(3)(b) which deals with non-military classified matters. See Section 9(1) of the Official Secrets Act 1962 on the definition of classified matter. Prof Utomi, who wasn’t informed of the venue of the Party Primaries in which he was to participate in, and was unable to discover the location of the venue through his own investigative efforts, is unlikely to be in possession of any classified information. There’s nothing classified about Government’s public policies, and letting Nigerians know the pitfalls therein, whether better ideas are put forward or not. This is called freedom of expression. It is bad enough that Chapter II of the Constitution, that is, the Fundamental Objectives and Directive Principles of State Policy that makes Government accountable to the people, is not directly justiciable, then to use all kinds of means of stopping people from expressing their opinions/displeasure resembles an autocratic, and not a democratic environment. 

As for Section 2(3)(a) of the NSA Act which provides for the prevention and detection of crimes that affect the internal security of Nigeria, internal security includes things to do with treason, insurgency, terrorism, subversion, spying and sedition. The first three offences have to do with violence, the fourth and fifth, leaking political or official information/secrets to another country and we can rule them all out in Prof Utomi’s case, since the DSS has brought a civil and not criminal against him. The sixth, Sedition, is inter alia, publications or actions which tend to bring the Government, President or Governors into disrepute, or incite hatred and disaffection against them, or promote hostility amongst different sections of Nigerians. See Sections 50 & 51 of the Criminal Code Act (CCA). However, in DPP v Obi (1961) LPELR-24982(SC) per Adetokunbo Adegboyega Ademola, JSC, the Supreme Court, inter alia, enumerated circumstances in which a publication or an action wouldn’t be seditious, such as when it shows that the President or Governor was misled or made a mistake in any measure, or pointing out errors in the measures. It appears that Prof Utomi’s actions fall within this exception, and are also protected by the aforementioned fundamental rights. 

Even Section 2(3)(c) of the NSA Act which endows the National Assembly and the President with powers to assign other responsibilities to the SSS that are deemed necessary, such responsibilities are also not at large - they must be related to Nigeria’s internal security. 

Conclusion 

Is the DSS now trying to insist that everyone must support the Tinubu administration, and those who are not in support are a threat to its existence? With the wave of defections to the ruling APC going on at the moment, Nigerians are asking whether the country is moving towards a one-party State, which could be undemocratic, because one of the drawbacks of a one-Party State is that it promotes less accountability from the ruling party. In a country where the level of accountability on the part of the Federal Government has been rather low, and that of the Governors, even less, it would be like having no opposition and zero accountability in a one-Party State. 

As for the SSS or DSS, they already have their work very well cut out for them with the numerous threats against Nigeria’s internal security, and they should face this squarely without distraction. Insurgency in the North East and Banditry/Farmer-Herder Crisis or whatever it is called in the North Central, seem to be on the rise again. It would be better if the SSS (DSS) concentrates more on these important matters bordering on insecurity, instead of wasting time on absurdities. Have they even watched any of Prof Utomi’s interviews on television? Mostly, only people who have some basic knowledge of economics can relate to his submissions. The average man on the street may not even have a television to watch Prof Utomi, or electricity supply to tune in, let alone understand and be influenced by Prof Utomi’s economic theories. 

The irresistible conclusion about the DSS’s suit against Prof Utomi is, as we say in legal parlance when we want the court to dismiss our opponent’s application, that it is ‘misconceived, frivolous and vexatious’!